Recording Telephone Calls

Full disclosure: If you call me, the conversation may be recorded. Why?

If you are a client, I keep an archive of the recording for notes and future reference.

If you are a marketing company, then you won’t like being recorded and try to tell me that it is illegal while you are recording the same conversation “for training purposes.”

If you are a bill collector, then I want to have an indisputable record of our conversation of why you think I owe you.

*By the way, I keep all emails as well in order to comply with the 2006 Amended FRPC for electronic discovery.

With that stated, lets explore the issue some more. Please not that this post is not a substitute for legal reference. It only serves as a guide to do your own research.

Federal Laws

Telephone conversation recording is not prohibited by Federal law, provided that at least one party to the conversation consents. That means you can record any conversation of which you are a party, according to Federal law. You can also record a conversation for another party as long as that party consents to the recording.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides: “It shall not be unlawful under this chapter for a person [not a law enforcement person] to intercept a wire, oral or electronic communication where such person is a party to the communicationor where one of the parties to the communication has given prior consent so such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

FCC Regulations

The FCC only has rules regulating the manner in which telephone companies may record wireline telephone conversations.

The FCC currently has no rules regarding recording of telephone conversations by individuals, but federal and many state laws may prohibit this practice.

This is where it gets tricky. There are basically to categories of state law on the subject. There are “One Party Consent” states and “All Party Consent States”.

One Party Consent: one party to the conversation must have knowledge and give consent to the recording.

All Party Consent: all parties to the conversation must have knowledge and give consent to the recording.

If your call takes places in 2 states who are both one party consent, then there is no confusion. If the call takes place across state boundaries where there is a combination of one party and all party states, then laws are much more difficult. It is best to figure that if you call someone in an all party state or someone in a conference call is from an all party state then you need to notify everyone. However, if all parties are located in one party states, then you have the legal right to record.

updateCanadian Regulations

CRIMINAL CODE OF CANADA: PART VI: INVASION OF PRIVACY:

Section 183.1: Where a private communication is originated by more than one person or is intendedby the originator thereof to be received by more than one person, a consent to the interceptionthereof by any one of those persons is sufficient consent for the purposes of any provision of thisPart. [1993, c.40, s.2.]"

This gets a lot trickier, and the courts are yet to really rule on this subject. Technically speaking, VOIP traffic is pre-recorded. So what happens when you call me from your wireline or wireless phone to my Skype number or Vonage number?